A former priest and columnist who was sentenced to four years in prison for sexual assaults on a school boy in the late 1990s has had his conviction quashed and is to be retried.
Barry Fergal Jennings (57) of Cloonkeerin, Frenchpark, Co Roscommon, was convicted by unanimous jury decision in March of last year of six counts of sexual assault of the boy at locations in Dublin on dates between September 1998 and December 1999.
Mr Jennings, aka Fr Jennings and Fr Fergal Mac Eoinín, was a chaplain at a community school in Dublin at the time of the alleged offences. He had denied the charges.
At his trial at Dublin Circuit Criminal Court, Monica Leech BL, prosecuting, said it was the State's case that the priest went to the victim’s home and molested him in his bed. Counsel said it was the State's case that the accused also sexually assaulted him a number of times while driving him around and also molested him twice at locations at the school.
In his victim impact statement, the man said that he was previously a happy child, but that the sex attacks destroyed his life, resulting in him turning to alcohol and drugs and making him feel suicidal.
At the Court of Appeal on Friday, Ms Justice Isobel Kennedy said that in December 2017 the complainant made statements to An Garda Siochana alleging the abuse. The complainant had already told a doctor, a separate priest and his mother that he had been assaulted.
In May 2018, the complainant also made a phone-call to a life-long friend to say that he had contacted the gardaí.
Evidence of the making of the complaints were heard in the trial and put before the jury.
Value of evidence
Ms Justice Kennedy said it was the submission of Mr Jennings' legal team that the jury were not directed on the value of this evidence about how the complaints were made.
She said it was argued that the trial judge erred in omitting to explain the purpose upon which the complaint evidence was admissible, "namely, to show consistency of the account, not for the purpose of proving the fact of the complaint itself and [that it] did not constitute corroboration".
Lorcan Staines SC, for Mr Jennings, had argued that it was "clear that this was an error or oversight which simply was not noted by any party to the trial".
Mr Staines said the omission was "a legal principle of such fundamental importance, that the failure to instruct the jury on the limited use of this evidence amounts to a fundamental deficiency in the trial".
The State had argued that no requisition was made of the judge by the defence following the judge's charge to the jury before they began deliberations.
The State also submitted that nothing had arisen "to raise an apprehension that a fundamental injustice has occurred" due to the omission.
Ms Justice Kennedy said: "It must be recalled that evidence of complaint is not evidence of the truth of the allegation made and nor is such evidence capable of constituting corroboration of the complainant's testimony."
The judge said that complaint evidence could be relied on for the "limited purpose of seeking to show consistency on the part of the complainant". Ms Justice Kennedy said "it should always be made clear to the jury that such evidence is not evidence of the facts on which the complaint is based" but rather to show the victim was consistent with their testimony in court.
"There is a risk in the absence of an instruction by a trial judge that a jury, unaware of the legal niceties, may consider such evidence to be supportive of the complainant's account or that the evidence confirms the complainant's account.
"An express instruction is required in most circumstances to obviate that risk. Such an instruction was not furnished in this trial," said Ms Justice Kennedy.
The judge said the evidence of complaint was "clearly of importance" in the case and warranted a direction from the trial judge.
In quashing the conviction, Ms Justice Kennedy said there had been "an oversight or error of substance, giving rise to the apprehension of real injustice".
The judge said the complaint evidence was "critical to the prosecution's evidence against the appellant and the absence of the appropriate direction as to the specific use of that evidence in those circumstances renders the conviction unsafe".
Ms Justice Kennedy then quashed the conviction and Mr Jennings is to appear before Dublin Circuit Criminal Court on Wednesday of next week.
At the trial, Patrick O’Sullivan BL, defending, said Mr Jennings was a highly-educated man who had a number of primary degrees and qualified as a barrister. He joined the Dominican order in 1993 and became a chaplain at the school in 1996 before moving to a parish in Waterford.
The court heard Mr Jennings had a column in The Irish Times which ended as soon as the allegations against him came to light.
Defence counsel said Mr Jennings left the priesthood in 2016 after becoming “disillusioned” and that he now lived “effectively as a hermit” in a rural area in Co Roscommon, where he has little interaction with anyone.
